Best wishes for a happy, healthy, and rewarding 2004! Thanks so much to the thousands upon thousands of readers who visited "How Appealing" in 2003, and very special thanks to those readers who took the time to email ideas, links, or attachments that led to additional posts. In 2003, this blog's "20 questions for the appellate judge" feature went from facing the threat of extinction to having an incredibly impressive abundance of federal and state appellate judges who came forth and agreed to be interviewed. Many of those interviews remain to be conducted in the months ahead.

As I sit here on the eve of 2004, it is impossible to predict what changes the new year will bring for me and this Web log. On October 28, 2004 I will turn 40 years old. You have my word that "How Appealing" will at least continue to exist through that date and that I have made no final decision concerning what will happen thereafter.

I'm not someone who's much into New Year's resolutions, but for now let me throw out two rather insignificant hopes for the year ahead. I hope that Chuck Lane of The Washington Post in 2004 finds a way to quote me in his coverage of the U.S. Supreme Court. And I hope to make more blog-related speaking appearances on the heels of my talk at the Harvard Law School on the evening of Monday, January 12, 2004 (details here). Already there's the prospect of an invitation from a highly regarded law school in the Midwest, so stay tuned.

But more seriously, while philosophers may never solve whether the chicken predated the egg or whether a tree falling in a forest makes a sound if no ears are nearby, I can assure you that this Web log would not exist were it not for you, the reader. The incredibly kind emails, telephone calls, unsolicited gifts (yes, even a Chief Justice Rehnquist bobblehead doll arrived in 2003), and enthusiasm when meeting me in person that I have experienced from readers of this blog since beginning this endeavor back in early May 2002 have meant more to me than you will ever know.

"R.I. chief justice to hear appeals by terror suspects; The Defense Department has selected Frank J. Williams to play a role in the military trials of Guantanamo Bay detainees."This article (free registration required) appears today in The Providence Journal.

"Asbestos Litigation: Evidence Of Massive Corruption? An upcoming law-review article suggests that most of the thousands of asbestos-related injury claims being filed each year are bogus." Stuart Taylor Jr. has this essay in National Journal this week.

Law Professor Rick Hasen finds two more errors in the U.S. Supreme Court's recent campaign finance ruling: See this post for some (but not all) of the details. The complete opinion can be accessed here.

If only it were high school:The Associated Press, in an article headlined "Diazes' attorneys say case against them built on speculation," reports from Jackson, Mississippi that "The attorneys for indicted state Supreme Court Justice Oliver Diaz Jr. and his ex-wife, Jennifer, say the federal government's fraud and bribery case against their clients is 'based on unfounded speculation and innuendo.'"

"Strip clubs may be forced to stop selling alcohol": Today The Athens Banner-Herald reports here that "Tonight could be the end of the road for two strip clubs that have remained open in spite of an Athens-Clarke County law against nudity and alcohol."

"Stenehjem asks high court to hear river case":The Bismarck Tribune reports here today that "The dispute between recreational interests and navigation interests along the Missouri River could be heading to the U.S. Supreme Court."

"Puerto Rico's 1st Female Chief Justice":The Associated Press reported here last night that "Miriam Naveira was sworn in Tuesday as the new chief justice of Puerto Rico's Supreme Court, making her the first woman to hold the post."

NPR's written description of the amusement ride segment explains, "The California Supreme Court agrees to hear a case on whether rides at amusement parks should be held to the same regulatory safety standards as planes and trains. The case draws on a wrongful death lawsuit that claims high-speed roller coasters can cause blood vessel abnormalities to rupture. Scientists say rides are relatively safe."

A fake Gucci handbag that even fooled Gucci: Today a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed a trial court's ruling that denied to Gucci both an award of profits and an injunction prohibiting future infringement by the defendant, Daffy's. You can access today's ruling at this link.

A British appellate judge was once reputed to discourage appeals by exercising his court's prerogative of increasing, even doubling, the sentences of appellants who lost their appeal. It was an effective tactic for reducing appeals. It was not a glory of British jurisprudence. In our case, appeal has been discouraged by the action of the district judge given a stamp of approval by this court. "Win your appeal and double your sentence." That cannot be our motto or that of any judicial body interested in doing justice. The motto is not any better if it reads: "Win your appeal and increase your sentence 40 percent."

"Appellants' argument depends upon the notion that the events of September 11 so exalted first responders that, for many months thereafter, no one who sat across a courtroom from a police officer or a firefighter could get a fair shake": Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit, in an opinion by Circuit Judge Bruce M. Selya, rejects the argument that the events of September 11, 2001 deprived the plaintiffs of their right to a fair trial in an unrelated lawsuit against firefighters based in Rhode Island.

Congress should eliminate the law that automatically confers U.S. citizenship on all individuals born in the United States: So argues Seventh Circuit Judge Richard A. Posner in a must-read concurring opinion issued today in an asylum case involving a refugee who fears that her young daughters, U.S. citizens due to the location of their birth, will be subject to clitoridectomy and infibulation if their mother is forced to return to Nigeria.

"Judge: WTO arrests lacked cause."The Seattle Times reports here today that "Seattle police who arrested World Trade Organization protesters four years ago had no probable cause to do so, a federal judge has ruled, possibly leaving the city vulnerable to damages from a class-action lawsuit."

"Attorney will face hearing on conduct":The Seattle Times reports here today that "A public disciplinary hearing has been ordered for a Seattle attorney who was caught in a jailhouse sexual encounter more than a year ago with her client, a man currently on trial for three killings in Bellevue."

Monday, January 12, 2004 is the scheduled publication date for the next installment of my monthly appellate column that appears in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. The public has until February 16, 2004 to comment on proposed amendments to the Federal Rules of Appellate Procedure that are scheduled to take effect December 1, 2005. My appellate column next month will summarize and provide my views on the most significant of the proposed FRAP amendments. Will my column unwrap the "Washington's Birthday Package"? Time will tell.

"Carrying democracy too far poses a great threat to our freedom":This op-ed -- which appeared in yesterday's edition of The News-Sentinel of Fort Wayne, Indiana -- argues in favor of the availability of the filibuster to block confirmation of federal judicial nominees.

"How Appealing" gets results: It appears that the Fourth Circuit has abandoned its practice of "vacating" its decisions in cases that the U.S. Supreme Court has agreed to review on the merits. See the notation at the very bottom of this page, and then read my post from last month questioning the logic of the Fourth Circuit's practice -- a question that arose in the context of the very same case that is the subject of today's "this decision is not being vacated" announcement.

As a result of the evidence of perjury, subornation of perjury, and obstruction of justice, the House of Representatives voted to impeach President Clinton on December 19, 1998. On February 12, 1999, following trial on two articles of impeachment, the Senate voted on whether to remove Clinton from office. Although a majority of Senators voted for removal, the vote fell short of the two-thirds' concurrence necessary for conviction of President Clinton.

A reader clerking for a federal judge based in California emails to note that a majority of Senators did not vote to remove President Clinton from office. And indeed the reader is correct. On the perjury charge, the Senate voted 55-45 against removal. And on the obstruction of justice charge, the Senate divided evenly, 50-50. Readers desiring even more information about the impeachment trial can access it here via The Washington Post and here via the PBS program NewsHour.

Unanimous eleven-judge en banc Ninth Circuit panel holds that federal law prohibits United States Fish and Wildlife Service from authorizing sockeye salmon enhancement project in Alaska wilderness reserve: Today's en banc decision reaches a result that is directly contrary to the result that a divided three-judge Ninth Circuit panel reached back in January 2003. None of the judges on the original three-judge panel was selected to serve on the eleven-judge en banc panel.

In news from Nebraska:The Lincoln Journal Star today contains an article headlined "Appeals court to hear lawsuit against Bush" that begins, "A former eastern Nebraska congressman who waged an anti-war fight with President Bush in federal court will get another chance to argue his case. The Eighth U.S. Circuit Court of Appeals agreed last week to hear an appeal of Clair Callan's third lawsuit against Bush -- this one questioning whether Congress had the authority to grant Bush an open-ended means to wage war."

"Center president seeks congressional seat":The Philadelphia Inquirer reports here today that "National Constitution Center president Joseph M. Torsella started his campaign for the 13th Congressional District yesterday, touting himself as the candidate of fresh ideas."

Join together with the ban: Election law blogger Rick Hasen has found a typo in Chief Justice William H. Rehnquist's separate opinion (see the fourth line of the first full paragraph on page five of the PDF file) in the Bipartisan Campaign Reform Act case. (The title of this post is based on The Who's "Join Together.")

Ninth Circuit opinion issued today creates intra-circuit split over correct way to spell "Dr. Seuss": A gimlet-eyed reader notes that the nude Barbie opinion (which I originally noted here) spells the good doctor's name variously as "Dr. Seuss" and as "Dr. Suess." Suffice it to say that only one of those two spellings is correct.

"Inmate Deemed Retarded Still on Death Row":The Associated Press reports here that "The Virginia inmate whose case persuaded the U.S. Supreme Court to bar the execution of mentally retarded killers remains on death row more than a year later, and prosecutors are determined to see him die."

Divided three-judge Ninth Circuit panel upholds legality of Oregon law that prohibits homeowner from displaying highway billboard favoring peace in the Persian Gulf: You can access today's ruling at this link.

Ninth Circuit rebuffs Mattel's challenge to artist's photographs depicting nude Barbie about to be attacked by vintage household appliances:The U.S. Court of Appeals for the Ninth Circuit has today issued this opinion. Aside from being of interest to fetishists, the opinion will also be of interest to those concerned with the "fair use" copyright doctrine.

"He is a self-described twice-baptized lover of gospel music, yet he passionately asserts that the Ten Commandments do not belong on government property."An article headlined "Fighting for our rights" appears today in The Daily Journal of Johnson County, Indiana. The article profiles the executive director of the Indiana Civil Liberties Union.

Access online the American Legion's amicus brief filed in the Pledge of Allegiance case pending before the U.S. Supreme Court: The brief, filed by attorneys practicing at Winston & Strawn, can be viewed here. Thanks much to the reader who provided this brief to me via email.

"4 conservative groups offer to defend city against ACLU suit": Today's issue of The Providence Journal contains an article (free registration required) that begins, "Four conservative organizations have volunteered to defend the city, at no cost, against a federal lawsuit brought by the Rhode island Affiliate of the American Civil Liberties Union over the city's holiday display."

"Short-Circuited Reasoning and Obstructionist Filibustering: The 9th Circuit--where judicial activists run amok--and Senate liberals who want to keep it that way." Jan LaRue, chief counsel of the organization Concerned Women for America, today has this essay posted online at that organization's Web site.

Caution -- geek-speak ahead: In an effort to avoid link-rot -- the phenomenon whereby links to a resource that work today are rendered less useful or, more often, entirely useless by the passage of time -- as of this morning I have begun to link to articles published in the print version of The New York Times using the method that Dave Winer describes here. As a result, links to NYTimes articles will henceforth contain more text than they previously did. The good news is that this additional text in the link will only be noticeable if you click on, hover over, or email a link to a NYTimes article. And, of course, if a link seems too lengthy to email, you can always use TinyURL.com or a similar resource.

"State to appeal court’s ruling on Lionel Tate":The South Florida Sun-Sentinel reports here today that "The State Attorney General's Office will ask the 4th District Court of Appeal on Monday to reconsider a decision throwing out Lionel Tate's first-degree murder conviction and life sentence."

"Heir pushes for DNA use in his paternity suit; A scion of the Johnson & Johnson fortune wants a new law so he can limit a daughter's inheritance." Today The Philadelphia Inquirer contains this article.

"Let Tom Feeney be the judge": The current issue of Orlando Weekly contains an article that begins, "On the morning of March 27, Tom Feeney rose from his seat in the House of Representatives and with six words began a legal insurrection heard across America. The words were harmless enough: 'Mr. Chairman, I offer an amendment.' It was what was inside the amendment that caused federal judges and legal scholars to lash out at Feeney, a 45-year-old Oviedo Republican, and other like-minded members of congress."

Welcome New Zealanders! What would it take to cause a whole bunch of New Zealanders to visit "How Appealing"? First, it would take an article from Reuters about the Michael Jackson child molestation prosecution that happens, in passing, to mention a couple of law-related Web logs, including this one. And then it would require XtraMSN, a popular Web portal in New Zealand, to feature that article on the front page of its site. Quite bizarre indeed.

Access online the printed pamphlet version of the federal government's opening brief on the merits in the Pledge of Allegiance case pending in the U.S. Supreme Court: It is available online here. Thanks to Marty of SCOTUSblog for the pointer. (I previously linked to the typescript version of this brief a few days ago.)

"Child model, actor seeks compensation after playground mishap":The Stamford (Ct.) Advocate reports here today that "A 2-year-old model and actor from Old Greenwich is seeking lost wages and other compensation from the city of Stamford after cutting his head at a public playground."

"Lawyer in attorney general's office sues supervisors":The Pittsburgh Post-Gazette today contains an article from The Associated Press that begins, "Former Attorney General Mike Fisher and high-ranking officials under him have been sued by a lawyer in the attorney general's Pittsburgh office who claims she was retaliated against for blowing the whistle on 'arguably criminal' handling of a trust case."

"Presidential Powers: A Court Pushes Back; How do you solve a problem like Padilla?" I'm still getting used to Newsweek's recently unveiled Web redesign. But now that I have read this article in the hard copy of the magazine, I can assure you that it's well worth a look. Especially if you are curious to learn which high-ranking Bush Administration attorney, according to reporter Michael Isikoff, advised against holding Jose Padilla as an enemy combatant.

"Format issues hold up 10 Commandments display":An article that will appear tomorrow in The Atlanta Journal-Constitution begins, "It will be sometime in 2004 before the Ten Commandments and other documents pertinent to Georgia history are hung in the Cherokee County Justice Center, officials say."

"Victim wants teen tried here": Today's edition of The Montgomery Advertiser contains an article that begins, "A Virginia jury's decision to spare the life of Lee Boyd Malvo on Tuesday left Kellie Adams hoping the convicted sniper would face a less merciful jury in Alabama."

An additional, noteworthy Pledge of Allegiance amicus brief filed in the U.S. Supreme Court is accessible online: The amicus brief of the National Jewish Commission on Law and Public Affairs is available online here. Nathan Lewin is listed as the group's counsel of record. Thanks much to the reader who sent this brief to me via email today.

Never mind: Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued an order noting that the federal government had confessed error in a pending en banc case that called on the court to decide when, if ever, issue preclusion can be used against a defendant in a criminal prosecution. The original three-judge panel opinion that the Ninth Circuit issued back in April 2003 can be viewed here.

Here it is: The pro bono amicus curiae brief that the U.S. Court of Appeals for the Third Circuit last month appointed me to file is now off being copied and will soon be on its way to the federal courthouse for filing. Thanks to the miracle of technology, the brief can be accessed online here. This case is scheduled to be argued in Philadelphia during the week of January 19, 2004 before a panel consisting of Circuit Judges Dolores K. Sloviter, Samuel A. Alito Jr., and Michael Chertoff. This will be my first oral argument before Judge Chertoff, so I'll be especially looking forward to that.

Eighth Circuit gossip: Jerry Berger of The St. Louis Post-Dispatch writes here today that "Bryan Cave barrister Jerry Hunter has declined a presidential appointment to the coveted U.S. 8th Circuit Court of Appeals. The position is one of the most sought-after by aspiring lawyers and judges."

Not only is it Christmas Eve: Additionally, today is the due date for the pro bono amicus brief that the U.S. Court of Appeals for the Third Circuit late last month appointed me to file in an appeal presenting the question whether a pro se lawyer should be entitled to recover attorneys' fees under the common fund doctrine in a shareholder derivative suit. I was appointed to serve as amicus in support of affirmance of the district court's ruling, which refused to award attorneys' fees. Perhaps later today, as the brief is heading out the door, I will post its contents online.

"Lawyer published tell-all memoir; The year 2003 was a banner one for former Chester County lawyer Bob Surrick."This article appears today in The Daily Local News of West Chester, Pa. For some reason that guy sounds familiar.

"For teen, win contributes to freedom of expression; Political victory in court":The Athens Banner-Herald today contains an article that begins, "Thanks to a recent U.S. Supreme Court ruling, a Jackson County girl gets to put her 2 cents into federal politics - literally."

Access online the defense closing argument in the penalty phase of the Lee Boyd Malvo trial: According to Adam Liptak's recap online at The New York Times Web site of today's sentence of life without parole, during the closing argument:

Mr. Cooley [one of Malvo's attorneys] asked jurors to consider their individual responsibility for imposing the death penalty, recalling that "in ancient times execution was a participatory activity." Jurors back then, he said, would stone the defendant to death and then retrieve their bloody weapons.

He walked to the counsel table and picked up a heavy stone, weighing it in his hand.

You can access the complete transcript of the defense closing argument here (page one) and here (page two). The complete text of the passage to which Liptak refers follows:

In ancient times, execution was a participatory act. Each member of the jury would go and arm themselves with a stone, and then they would hurl it into the head or body of the defenseless accused, and after it was over, each would retrieve their stone, and it would be soaked with the blood of the condemned. You are not holding it, but you can feel the weight of the stone. This stone has no humanity. This stone is ungiving. It is unfeeling. This stone has no compassion, and once it has been cast, it has no ability to temper its impact, and after you have cast it, you can feel on your fingertips the grip of the stone, and you know you've thrown it.

The Commonwealth urges you to vote to kill, to stain your stone with the blood of this child. The prosecution urges you to take up the stone. Your humanity challenges you to let this stone lie. A sentence of death requires unanimity. That means in order for an execution to occur, each of you must actively participate or worse, acquiesce in that decision. I beg each of you to consider and hold onto your conscientious beliefs.

For those who believe Lee Boyd Malvo deserves the death penalty: A prosecution in Alabama would now appear to be your best hope. More information on the Alabama connection can be accessed here. Update: Also, don't overlook Louisiana, which remains in the running for reasons that are explained here.

Fourth Circuit prohibits Zacarias Moussaoui from making any additional pro se filings: Just in time for the holidays, the U.S. Court of Appeals for the Fourth Circuit today issued an order that requires Zacarias Moussaoui to keep his zany musings to himself. The Fourth Circuit's electronic docket, accessible here, reflects the names that Moussaoui has assigned to his many pro se filings.

BREAKING NEWS: The jury has recommended a sentence of life imprisonment without parole for Lee Boyd Malvo. Accordingly, he will not be receiving the death penalty in Virginia as a result of his participation in the DC-area sniper killings.

False alarm: The jury in the Lee Boyd Malvo trial returned to the courtroom with the verdict slip partially completed to show a sentence on only one of the three counts. The jury was thus returned to the jury room to complete its task. Whether this was an error in failing to complete the verdict slip fully or an error in failing to understand that the sentence on all three counts of conviction had to be arrived at before the sentence could be returned remains to be seen.

BREAKING NEWS -- The jury has reached a verdict in the sentencing phase of the Lee Boyd Malvo trial: An announcement of whether the jury will recommend the death penalty is expected sometime in the next twenty minutes.

"Pot laws don't violate charter: Canada's top court."CBC News reports here that "Canada's laws making the possession of small amounts of marijuana illegal do not violate the Charter of Rights and Freedoms, Canada's top court has ruled." And you can access today's ruling of the Supreme Court of Canada at this link. (Thanks much to a Canada-based reader for emailing this news and these links.)

Seventh Circuit creates circuit split over whether a certain federal sentencing enhancement can apply in underage Internet sex sting involving a pretend minor: Today a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a majority opinion that begins:

ROVNER, Circuit Judge. The Internet has opened the doors for many to transact business and personal affairs with almost complete anonymity. For fifty-year-old John Mitchell, it allowed him to initiate a relationship with fourteen-year-old Dena Hugh. After two weeks of communicating with Dena about a variety of topics, but mostly about sex, he arranged to drive from Indiana to Illinois to meet her at a hotel near her home for the purpose of engaging in sexual activity. But the anonymity of the Internet works in both directions, and unfortunately for Mitchell, "Dena" was actually an undercover Cook County Sheriff's Detective posing as a fourteen-year-old girl. Mitchell was arrested at the Illinois hotel and pled guilty to traveling in interstate commerce with the intent to engage in a sexual act with an undercover agent whom he believed to be a fourteen-year-old girl. During sentencing the district court increased his offense level by two based on the United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2A3.2(b)(2)(B) (2001) which provides for a two-level enhancement where the defendant unduly influenced a minor under the age of sixteen to engage in prohibited sexual conduct. Mitchell argues that this enhancement cannot apply when the victim is an imaginary teenager and where no sexual conduct has occurred. Because we agree that the plain language of the sentencing guideline cannot apply in the case of an attempt where the victim is an undercover police officer, we reverse and remand for re-sentencing.

Don't dis them: An east coast-based federal appellate judge emails, "'Irregardless' must have been a typo. The judges obviously meant 'disirregardless.'" A Google search confirms that disirregardless is trying to enter the lexicon.

The Associated Press is reporting: An article headlined "Man Gets Death in Mass. Carjack Killings" reports that "Gary Sampson, a drifter who confessed to carjacking and killing two Massachusetts men during a weeklong crime spree, was sentenced to death Tuesday by a federal jury." According to the article, the death penalty was last carried out in Massachusetts in 1947.

My write-up sought reader input on whether other federal appellate courts required that advocates file briefs that contained line numbering and whether I am alone in my disdain for line numbering. So far, none of the seven readers who responded to my post has cited to another federal appellate court that requires line numbering in appellate briefs. But all seven readers agree with me that line numbering is not a beneficial addition.

Here's a sampling of reader commentary. A reader from West Virginia writes:

Neither the Fourth Circuit nor the WV Supreme Court of Appeals requires line-numbering (and no, you are not alone, I think it's just plain unhelpful). Although it's been a year or so since I've had to file a brief in the Sixth Circuit, the last brief I filed did not include line numbers.

An attorney who practices in Kansas City, Missouri emails:

No such rule in the 8th or 10th Circuits. I agree with you--line numbering is too distracting.

An attorney who works on the staff of the Attorney General of Alaska emails:

Here, here. Nay to line numbering, aye to aesthetics, which then leads to the seemingly interminable debate on footnotes. (I vote no.)

A very experienced appellate attorney practicing in Philadelphia emails:

(1) I agree with you on both points. I favor electronic filing of briefs, but I see no good reason for line numbering. Where do they think we practice, Cahleefohkneeah, the land of "pleading paper"? If I need to refer to an opponent's brief (or my own opening brief, in a reply brief) by particular line number, I have not found it too difficult to count. The number is unlikely to be higher than 26, after all. My counting does become unreliable for numbers higher than 29, but you can't get that many lines onto a page. (2) Do you find it ironic that comments on these proposed rules are not invited for submission electronically or by e-mail, but only by regular mail?

A lawyer who handles appeals in California emails:

FRAP 32(e) states, "Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule. By local rule or order in a particular case a court of appeals may accept documents that do not meet all of the form requirements of this rule." Under 32(e) and because FRAP 32 doesn't require line-numbering, doesn't the 3d Circuit have to accept a brief without line-numbering, even if the 3d Circuit adopts the proposed local rule?

In practice, 9th Circuit briefs (and opinions) are not line-numbered. But I don't think the 9th Cir. local rules say anything about line-numbering and I doubt the court would reject a brief which has line-numbering.

The California Rules of Court expressly bar line-numbering for appellate briefs filed in the Cal. Ct. of Appeal and the Cal. Supreme Court: "The lines of text must be unnumbered ...." Cal.R.Ct. 14(b)(5).

If you're taking a survey of appellate practitioners, I'm with you on this one. Line-numbering is visually distracting and provides only "marginal" help in referencing text.

An attorney based in Boston emails:

No line numbering in the First Circuit.

But this raises another issue (and I'll definitely remain anonymous on this one): the 1st Circuit requires that the electronic version that is filed must be in WordPerfect. Although I am actually personally fond of WordPerfect, since nobody uses it, lawyers must convert filed from Word to WordPerfect at the last minute, generating many formatting and similar glitches on the eve of filing. Do other courts retain this adherence to the word processing program that lost the battle?

Thanks to all who have emailed. By the way, the Third Circuit's press release contains instructions on how to submit official comments. Emails to me, I'm afraid, don't count as official comments (although they may be read online here by those who end up reviewing the official comments, and also by many other appellate lawyers and judges who work and practice outside of the Third Circuit).

"State disputes lawsuit over ouster":The Montgomery Advertiser reports here today that "Several Montgomery area residents, who want to see ousted state Supreme Court Chief Justice Roy Moore back on the bench, will have to wait as a federal judge decides whether to let the case proceed."

Guess which circuit is home to a judge who disagrees with Chief Justice William H. Rehnquist over whether "irregardless" is a word?The story is told that Chief Justice Rehnquist once said to an advocate at oral argument, "I feel bound to inform you there is no word irregardless in the English language. The word is regardless." Today, Senior Ninth Circuit Judge J. Clifford Wallace, in his dissenting opinion on page 23 of this PDF document, seems to disagree. Thanks to a reader for drawing this to my attention.

Elk Grove Unified School District sponsors "Pledge of Allegiance Essay Contest":The Elk Grove Unified School District is the petitioner in the case now pending before the U.S. Supreme Court that seeks to overturn the Ninth Circuit's decision prohibiting inclusion of the words "under God" in the Pledge of Allegiance when recited in public school. I'm still looking forward to seeing a copy of the school district's opening brief on the merits, which was filed on Friday. In the meantime, however, I was amused to stumble across this announcement that the school district has sponsored a "Pledge of Allegiance" essay contest and -- get this -- the two winners will be flown to Washington, DC to watch the oral argument in the Supreme Court. Moreover, one of the two winners will have won by arguing that the school district's position in the case is full of baloney (or, for traditionalists and foodists, bologna).

The first proposed amendment will require that briefs be filed electronically in addition to in print on paper, and the electronic version will be the official version of the brief. I favor electronic filing, because it will make it easy for the Third Circuit to allow online access to briefs the way that both the Seventh and Eighth Circuit now do. (This isn't to say that the Third Circuit is on the verge of doing so, but at least it will soon have the ability to do so.)

The second proposed amendment will require that both the electronic version and the printed version of an appellate brief include line numbering throughout the body of the brief. Perhaps I'm alone in this view, but line numbering is one of my least favorite practices in the law. (With apologies to the Second Circuit, a court whose published opinions almost always contain line numbering.) The practice of line numbering makes a document less aesthetically pleasing, and the huge distraction it supplies far outweighs the minor benefit of having to count lines oneself. Take this example of a Second Circuit opinion issued today (and be sure to see what happens in the case of multiple footnotes on page 17). Perhaps I'm gullible, but this typography guide from the Seventh Circuit has convinced me that appellate briefs should be pleasing to the eye. Line numbering, I'm afraid, detracts from that goal. And I can't believe that a huge time savings will be achieved if practitioners could more easily cite to a specific line or lines of a brief as opposed to an entire page.

I'd be interested to hear from lawyers who practice in other circuits whether any other federal appellate courts require the line numbering of briefs. Although it's been a while since I've filed a brief in the Second Circuit, my recollection is that not even that court requires line numbering in appellate briefs. (The super-large docket number required on Second Circuit briefs is an issue for another time.)

Access online the federal government's opening brief on the merits in the Pledge of Allegiance case pending before the U.S. Supreme Court: The opening brief that the Solicitor General's Office filed on Friday can now be accessed here. Thanks much to the reader who so kindly forwarded this brief to me.

Barbie and Beanie Babies (just in time for the holidays): Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion by Circuit Judge Richard R. Clifton that begins, "Barbie, the ubiquitous doll produced by Mattel, has been a regular visitor to our court." Today's decision reverses the dismissal of a lawsuit involving Barbie that Mattel filed, perhaps ensuring additional visits from Barbie to the Ninth Circuit in the near future.

En banc Third Circuit upholds streamlined appellate review procedures applicable before the Board of Immigration Appeals: The vote on that issue was 9-4. On the other issue before the court, the petitioner prevailed (by a vote of seven for, three against, and three stating no position), on his claim that neither the Immigration Judge nor the BIA provided sufficient reasons to reject his testimony as incredible. Today's very interesting opinion can be accessed here. No three-judge panel opinion had previously issued in this case; rather, the case went en banc less than two months after it had been argued before a three-judge panel. A look at how each of the judges on the original panel voted in today's decision perhaps explains why en banc review was needed.

Update: On December 30, 2003, the Third Circuit issued an order that more specifically details how several judges voted in this en banc decision. As a result of this order, the voting breakdown that I provided in my original post is rendered incorrect.

My pledge to link to the merits briefs filed in the U.S. Supreme Court in the Pledge of Allegiance case: Last Friday was the due date for parties opposed to the Ninth Circuit's ruling in the Pledge of Allegiance case to file their opening briefs on the merits. Although the federal government's brief received some press coverage on Friday night, as of this moment the brief hasn't been made available for download or viewing via the Solicitor General's Web site. If anyone wishes to forward via email links to where the merits briefs have been posted online or the briefs themselves in PDF format, please feel free to do so. (Those wishing to forward one or more briefs should first email to request my alternate email address, as large attachments sent to this blog's email account will likely be bounced-back to the sender.)

"December 10: A Worrisome Day for the Freedom of Speech; McCain-Feingold's champions have long described it as only a modest first step." Stuart Taylor Jr. had this essay last week in National Journal.

"Witnesses in Oly case lambaste prosecutors":The Salt Lake Tribune today contains an article that begins, "Witnesses say prosecutors and FBI agents bullied them, twisted their words and threatened to indict them when they disagreed with the government's take in the Olympic bribery case."

From this morning's broadcast of NPR's "Weekend Edition - Saturday": "The Man Behind the Law in the Padilla Case" -- "NPR's Scott Simon talks with retired federal judge and former congressman Abner Mikva. Mr. Mikva was behind the 1971 law stipulating that 'no citizen shall be imprisoned... by the United States except pursuant to an act of Congress.' That law was cited this week in a federal court ruling on the case of accused terrorist Jose Padilla." Also, you can hear a segment entitled "New Emphasis on Redistricting Makes for Safe House," featuring an interview with Jeffrey Toobin. (Both segments require Real Player.)

"For the Love of Legos: Why would a successful corporate lawyer abandon his career to earn $13 an hour playing with plastic blocks? Nathan Sawaya will be only too happy to tell you."This article appeared in yesterday's issue of Newsday. And you can see more of this lawyer's LEGO artwork here.

Divided three-judge Eleventh Circuit panel reinstates lawsuit by ex-felons in Florida challenging the constitutionality of their voting disenfranchisement: Thanks to this ruling issued today, at some point in the future there could be even more votes that might or might not get counted in Florida.

By the way, today is the due date for the opening briefs of the parties that are challenging the Ninth Circuit's ruling in this case (see the U.S. Supreme Court's docket entries here), so stay tuned for further developments.

D.C. Circuit orders the quashing of Recording Industry's subpoenas issued to Verizon to discover the name of two large traders of .mp3 files: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.

Noting a minor inaccuracy in today's Ninth Circuit decision regarding Guantanamo detainees: Today's ruling by a divided three-judge Ninth Circuit panel in Gherebi v. Bush states, on page 4 of the PDF file: "Nor has a single Guantanamo detainee been given the opportunity to consult an attorney, had formal charges filed against him, or been permitted to contest the basis of his detention in any way."

By pointing out this minor inaccuracy in today's ruling, I do not intend to be critical of any of the judges on the panel. Obviously the opinion is not written or revised substantially on the day before its issuance. Nevertheless, it will be interesting to see whether this minor point is deemed worthy of correction.

"Courts Set Back Terror War Legal Strategy": David Kravets of The Associated Press has an article that begins, "In twin setbacks for the Bush administration's war on terror, federal appeals courts on opposite coasts ruled Thursday that the U.S. military cannot indefinitely hold prisoners without access to lawyers or the American courts."

BREAKING NEWS -- Jury finds Lee Boyd Malvo guilty on all three counts: Presumably now the trial will move on to the death penalty phase, which could start as early as tomorrow. Malvo was convicted on charges of capital murder and terrorism, both of which would allow imposition of the death penalty.

Third Circuit refuses, for now, to order the recusal of U.S. District Judge Alfred M. Wolin in mandamus actions relating to five large asbestos-related bankruptcies pending in Delaware: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. Instead, the Third Circuit has ordered Judge Wolin to allow the creation of a record and to rule, himself, on the recusal motions before the end of January 2004. The Third Circuit panel has retained jurisdiction to consider any further Third Circuit proceedings that will follow Judge Wolin's ruling on the recusal motions. Today's result accords with the impressions that I took away from the oral argument the Third Circuit held in these matters last Friday.

"The Big Kozinski":The cover story, by Emily Bazelon, contained in the January-February 2004 issue of Legal Affairs magazine bears the title "The Big Kozinski: If the Ninth Circuit were a circus--and some say it is--Alex Kozinski would be its ringmaster. Presenting the most controversial judge on our most controversial court." You can see the cover image here.

Can you hear me now? Apparently the answer was "no" in a portion of Mequon, Wisconsin, causing Verizon Wireless to seek permission to construct an additional cell phone antenna there. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, affirmed a federal trial court's order requiring Mequon to issue the permit Verizon is seeking. As usual, the opinion is well worth reading. To give just one example, the opinion states that Mequon's "'slippery slope' argument can't get off the ground."

Not standing by: Today a divided three-judge Eighth Circuit panel decided an interesting appeal presenting the question whether a defendant in a criminal case who had invoked his right to self-representation was unlawfully deprived of that right when stand-by counsel's response to a question from a potentially key defense witness caused the witness to secure her own lawyer and invoke her Fifth Amendment right to refuse to testify in the defendant's defense. The majority concluded that the defendant's rights were not infringed, but Circuit Judge Morris Sheppard Arnold has a persuasive dissent explaining why he has reached the contrary conclusion. You can access the complete ruling at this link.

BREAKING NEWS -- The U.S. Court of Appeals for the Second Circuit holds that "the President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat": The ruling comes in the case of accused enemy combatant Jose Padilla. The majority opinion was written jointly by Circuit Judges Rosemary S. Pooler and Barrington D. Parker, Jr. Circuit Judge Richard C. Wesley has dissented in part and would uphold the President's authority to detain Padilla. [Thanks so very much to the readers of "How Appealing" who ensured that I was among the first to report on this very significant ruling.]

Update at 11:25 a.m.: The Second Circuit has now posted online the majority and dissenting opinions.

BREAKING NEWS -- Divided three-judge Sixth Circuit panel affirms injunction that prohibits Ten Commandments displays by two counties and a school district in Kentucky: You can access today's ruling at this link. The appeal was argued one year and two weeks ago.

Circuit Judge Eric L. Clay delivered the opinion of the court. Circuit Judge Julia Smith Gibbons wrote a separate opinion concurring in part and concurring in the judgment. Senior Circuit Judge James L. Ryan, who coincidentally was the author of the majority opinion the Sixth Circuit issued yesterday upholding the constitutionality of Ohio's ban on partial birth abortion, dissented.

Correction: I have corrected my post from earlier today concerning this day's noteworthy Third Circuit decision because I erred in stating that the three-judge panel's ruling was unanimous. Although I checked to see whether any separate opinion accompanied the court's decision and found none, I have since become aware that in the final footnote of the opinion, one of the judges on the panel disclaims the panel's approach and instead states that he would affirm based on the quite different approach that the trial court utilized. This method of refusing to join in an appellate court's rationale is not as easy to detect as other equally convenient, but much more obvious, methods.

"Law firm sues man for 'squatting' on Web site name":The Star Tribune of Minneapolis contained this report yesterday. According to the newspaper article, the lawsuit alleges that the defendant "has copied Faegre's Internet home page and created a counterfeit Web page using the firm's name which included fictitious articles; photographs purportedly of aborted fetuses; links to abortion-opposition Web pages and defamatory material about the law firm and its employees." A Google search reveals that the site that is the subject of the suit remains accessible; viewer discretion is most strongly advised.

Not your typical mother: Today Fifth Circuit Judge Jerry E. Smith issued an opinion on behalf of a unanimous three-judge panel in which he begins the recitation of facts as follows:

The underlying facts have their origin in a scene familiar to many households: A mother asks her son to perform a simple chore, he refuses, and she ends up having to hire one of the kids from the neighborhood to do the job instead. Although ordinarily this would not land anyone in federal prison, it is also not the typical mother who would ask her son to set fire to a motel. Smith did just that. Motivated by a desire to collect on a $325,000 insurance policy, she asked her son, Johnathon Williams, to set fire to a motel she owned. When he refused, Smith turned to Josh Booty, a family friend, and offered to buy him a truck if he would burn down the motel.

What may happen next in the case challenging Ohio's ban on partial birth abortion: This morning, as I previously reported here, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion (available in HTML and PDF format) that overturned a federal trial court's injunction which had invalidated Ohio's ban on partial birth abortion. The majority concluded that Ohio's ban on partial birth abortion does not offend the U.S. Constitution.

The Sixth Circuit's decision, however, does not become effective immediately. Rather, the earliest it would take effect would be twenty-one days from today, when the Sixth Circuit would issue its mandate if the plaintiffs fail to file a timely petition for panel and / or en banc rehearing. If the plaintiffs do file a timely petition for rehearing, the earliest the Sixth Circuit's mandate would issue would be seven days after the request for rehearing has been denied.

If the plaintiffs decide not to ask for rehearing, or if they ask for rehearing but the request is denied or the result remains the same, the plaintiffs can file a petition for writ of certiorari in the U.S. Supreme Court asking the Court to accept the case for review on the merits. If the plaintiffs decide to file a cert. petition, they likely will ask the Sixth Circuit to stay the issuance of the mandate pending the Supreme Court's action on the case. If the Sixth Circuit agrees to stay its mandate, the trial court's injunction prohibiting enforcement of Ohio's partial birth abortion ban would remain in effect until the U.S. Supreme Court either denies review or rules on the merits. If the Sixth Circuit refuses to stay the mandate pending a cert. petition, the plaintiffs could ask Justice John Paul Stevens, in his role as Circuit Justice for the Sixth Circuit, to stay or recall the mandate. While it is impossible to predict how he would rule, Justice Stevens in the past has been a staunch defender of a woman's right to choose abortion.

"Fla. Judge Rules Against Accused Killer":The Associated Press reports here that "A judge has refused to order a Florida newspaper to remove information about an accused serial killer from its Web site." I first reported on this matter, and linked to the information in question, in a post you can access here.

On a question as to which other federal appellate courts have divided, unanimous three-judge Third Circuit panel holds that Due Process Clause does not protect a parent's right to the companionship of his or her adult child: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. As a result, the father of a man shot to death by the Philadelphia Police has lost his bid to reinstate his federal civil rights suit against the City of Philadelphia and various of its police officers. According to today's opinion, in so ruling the Third Circuit has sided with the D.C. and First Circuits and has sided against the Seventh and Tenth Circuits.

Correction: Contrary to the this post's original title, the Third Circuit's ruling was not unanimous. A footnote that appears at the very close of the opinion states, in full: "Judge Alito concurs in the judgment for essentially the reasons given by the District Court." The reasons given by the district court differ significantly from the reasons on which the other two Third Circuit judges relied in reaching today's result.

"Car chiefs failed to read deal documents":The Financial Times today reports that "The chairmen, chief executives and biggest shareholders of Chrysler and Daimler-Benz did not bother to read the deal documents before they agreed on the world's biggest industrial merger, court testimony over the past two weeks has revealed."

Sorry lawyers! Your right to recover the balance of your fee for legal services was discharged in your clients' Chapter 7 bankruptcy cases: The lawyers who represented the debtors in the Chapter 7 cases in which the Seventh Circuit today issued this opinion by Circuit Judge Frank H. Easterbrook appear to have done too good of a job protecting their clients and not good enough of a job protecting themselves. Senior Circuit Judge Richard D. Cudahy dissented from the opinion to the extent that today's decision creates a conflict with this ruling from the Ninth Circuit.

A lawyer traveling in his own car on a journey to pick up a witness seriously injures a pedestrian, who happens to be a doctor: In this opinion issued today, a three-judge Eighth Circuit panel determines whether the law firm's insurance policy provides coverage.

On the agenda: Philadelphia-area appellate lawyers may be interested to learn that Senior Third Circuit Judge Edward R. Becker will be the luncheon guest today (see the second item here) at a meeting of the Federal Courts Committee of the Philadelphia Bar Association. I had hoped to post this announcement earlier this morning, but Blogger was off-line for a while. In any event, I am planning to attend.

BREAKING NEWS -- Divided three-judge Sixth Circuit panel upholds lawfulness of Ohio's partial birth abortion ban: This will be seen as good news by supporters of the new federal ban on partial birth abortion. You can access today's ruling here (HTML) and here (PDF). Senior Circuit Judge James L. Ryan wrote the majority opinion, in which Circuit Judge Alice M. Batchelder joined. U.S. District Judge Arthur J. Tarnow, sitting by designation from the U.S. District Court for the Eastern District of Michigan, dissented and would have affirmed the trial court's decision that had permanently enjoined enforcement of Ohio's ban.

It is also quite worthy of note that the federal government participated in the Sixth Circuit appeal as a friend of the court in support of the constitutionality of Ohio's partial birth abortion ban. You can access what appears to be a complete copy of the federal government's Sixth Circuit brief at this link.

"Jailed student headed to New York":The Star Tribune is reporting that "The man arrested last week and detained in Minneapolis as a material witness in the federal government's investigation of Al-Qaida will be transferred to New York City for further federal court proceedings."

"Ashcroft sanctioned for violating gag order in Detroit terror trial":The Detroit News provides this report on an opinion (apparently not yet available online) that a Detroit-based federal district judge issued today.

I'm certain the federal government will seek further review, perhaps first from the en banc Ninth Circuit and thereafter, if necessary, from the U.S. Supreme Court. The Ninth Circuit's Commerce Clause jurisprudence as of late has gone a bit off the reservation in ways that the U.S. Supreme Court is unlikely to support. Only time will tell whether this case, or one of the other attractive candidates for reversal, will be the one to capture the Justices' attention. In the meantime, join me in congratulating Law Professor Randy Barnett on the important victory he achieved for his clients. How do I know it's important? For one thing, the Ninth Circuit issued the decision late today as an "immediate filing." For another, the case has its own snazzy Web site.

Does not compute: If you're against same-sex marriage, shouldn't you be for same-sex divorce? After all, the result is one fewer same-sex marriage. But perhaps there's a flaw in my logic, as The Des Moines Register today reports that "A group of conservative lawmakers, contending a state judge had no authority to grant a divorce to a Sioux City lesbian couple last month, on Monday asked the Iowa Supreme Court to throw out the divorce."

A guest post from Law Professor Eugene Volokh: Plus, it's been conveniently ghost-written for me to use:

Calling all law review editors: UCLA law professor Eugene Volokh wants to write a chapter on Law Review Write-On Competitions to the next edition of his Academic Legal Writing book, and he's looking for good tips to give to the competitors. If you're a current or former law review editor who has thought about this, and have some suggestions, he'd love to hear from you -- please e-mail him at volokh at law.ucla.edu.

Whether I'll ever get to write for "The Volokh Conspiracy" remains in doubt -- as Sasha correctly observed at lunch yesterday, a good pseudonym is so very difficult to unearth. But the chief conspirator can guest post here anytime.

One fewer reason for cows to be angry: A divided three-judge panel of the U.S. Court of Appeals for the Second Circuit today reversed the dismissal, for lack of standing, of an individual's suit that seeks to have the Department of Agriculture ban the use of "downed livestock" as food for human consumption. The majority opinion explains that "downed" is "an industry term used to describe animals that collapse for unknown reasons and are too ill to walk or stand prior to slaughter." The majority opinion goes on to explain that "Under current USDA regulations, downed livestock may be used for human consumption after passing a mandatory post-mortem inspection by a veterinary officer." The majority opinion, which reinstates this lawsuit, can be accessed here. The dissenting opinion, whose author would have affirmed the trial court's dismissal for lack of standing, can be accessed here.

Unanimous three-judge Eighth Circuit panel affirms denial of request for punitive damages arising from deadly American Airlines crash upon landing in Little Rock in June 1999: You can access today's opinion at this link. The opinion begins, "An American Airlines jet aircraft, being operated as Flight 1420 from Dallas/Fort Worth to Little Rock, crashed into a non-frangible approach light stanchion after touching down, broke apart, and caught fire. Eleven people died and more than eighty were injured as a result of the accident." More information about the crash can be found here, here, and here.

Three-judge D.C. Circuit panel holds that the Elizabeth Morgan Act is an unconstitutional bill of attainder: Today's opinion, representing the latest chapter in the long-running dispute between Dr. Eric A. Foretich and his former wife, Dr. Jean Elizabeth Morgan, can be accessed here.

"Morbid fascination" indeed: When news emerged earlier today that the U.S. Supreme Court had vacated, by a vote of 5-4, the last minute stay of execution issued in the case of Texas death penalty inmate Kevin Lee Zimmerman, at least one certain law blogger couldn't help but wonder whether Zimmerman would now get to experience a second "last meal."

My essay begins: "At the risk of losing my invitation to attend the next gathering of Pennsylvania-based appellate litigation enthusiasts, I have come to the controversial conclusion that the Superior Court of Pennsylvania should stop leaving it up to lawyers to decide which appeals are deserving of oral argument." You can access the whole thing at this link.

U.S. Supreme Court allows Texas to use on its death row inmates execution drug deemed too cruel to kill a dog: You can access today's order lifting a stay of execution in Zimmerman v. Johnson, over the dissent of four Justices, at this link.

"20 questions for the appellate judge" update: Either late today or early tomorrow, I will be dispatching via email the questions that I have prepared for January 2004's interviewee, Tenth Circuit Chief Judge Deanell Reece Tacha. Thanks to all of the readers who responded to my request for suggested questions for Chief Judge Tacha. Among those who responded was another federal appellate judge, which was the first time that has happened.

Prison's failure to serve Muslim inmate's post-Ramadan feast until one week later was not a de minimis violation of the inmate's rights justifying dismissal of the inmate's federal civil rights suit: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit issued this decision.

Today's U.S. Supreme Court opinions and orders: You can access today's opinion in Maryland v. Pringle, No. 02-809, at this link. The Chief Justice issued the unanimous opinion for the Court. You can access today's opinion in Castro v. United States, No. 02-6683, at this link. Justice Stephen G. Breyer wrote the majority opinion, in which all Justices joined in full except for Antonin Scalia and Clarence Thomas. Justice Scalia filed an opinion concurring in part and concurring in the judgment in which Justice Thomas joined.

The Order List issued today can be accessed here. The Court granted review in three cases, all of which are summarized in the press coverage I have previously linked to here.

"Court Lifts Stay of Execution on Inmate":The Associated Press reports here that "A divided Supreme Court on Monday lifted a last-minute stay that had spared a condemned Texas inmate from the death chamber."

And in completely unrelated news, I'm scheduled to have lunch today in Philadelphia with Sasha Volokh of "The Volokh Conspiracy." In an amazing coincidence, the lunch will occur at the same dim sum eatery where I had lunch so many months ago with Juan Non-Volokh. I hope to learn the status of my application to become a potentially pseudonymous Volokh co-conspirator once the "How Appealing" blog ceases to exist.

"Judge denies having a conflict; Samuel A. Alito Jr. is accused of a conflict of interest in dismissing a woman's lawsuit against Vanguard, with which he holds investments."This article appears today in The Philadelphia Inquirer.

"Slayings suspect's lawyers want T-U to pull Internet material; Motion also seeks order to halt reports on the deaths that are based on public records."The Florida Times-Union yesterday had this report. You can access that newspaper's in-depth coverage of accused serial killer Paul Durousseau at this link.

"Arguments begin in Maui church lawsuit":The Honolulu Advertiser reports here today that "A federal judge yesterday heard several groups' arguments in a closely watched, complex case concerning whether the Maui Planning Commission has a right to stop Hale O Kaula Church from building a chapel. No ruling is expected until after Christmas." In earlier coverage, The Advertiser reported that "Maui suit turns into wide test of U.S. law." You can learn much, much more about this case here, via the RLUIPA.org Web site. According to today's newspaper article, the federal district judge presiding over the case said yesterday that "he expects the case to eventually end up at the U.S. Supreme Court."

Scott Peterson gets to invoke his other Fifth Amendment rights: CNN.com reports late today that "Prosecutors in the murder case against Scott Peterson said Friday they want to buy his truck, which they contend he used to ferry the bodies of his wife and unborn son to San Francisco Bay, where they washed ashore in April."

"Judge's tactics leave him snared in tangled web of asbestos cases":This article concerning a pair of mandamus cases argued before the U.S. Court of Appeals for the Third Circuit this morning appeared in yesterday's edition of The Newark Star-Ledger. I was among the observers in a packed Third Circuit courtroom in Philadelphia this morning, and based on the oral argument it is impossible to predict how the three-judge panel will rule. This lack of a feeling of certainty that a ruling in favor of the parties seeking mandamus will ensue may augur good news for the parties opposing mandamus, given the especially rigorous showing necessary to prevail on a mandamus petition. The three judges assigned to decide the matter -- Circuit Judges Julio M. Fuentes and D. Brooks Smith and Senior Circuit Judge Leonard I. Garth -- were all most impressive in their questioning and grasp of the complicated issues that the cases appear to present. More information about the mandamus cases, including access to the parties' filings, is available on the Third Circuit's home page.

And sometimes the directions fail to get you where you are hoping to go: Yesterday, a unanimous three-judge panel of the Superior Court of Pennsylvania ruled that a trial court erred when relying on MapQuest to determine whether the location where a defendant was arrested in possession of a controlled substance was within 1000 feet of a school zone. Notably, the court uses the trademark symbol everytime it mentions the MapQuest name. Apparently, after calling MapQuest unreliable, the court did not want to risk a trademark infringement suit. You can access the opinion at this link.

Too close to call: In the past I have observed that one advantage of selecting appellate judges via elections is that it avoids the delay and uncertainty associated with filibusters. But, on rare occasion, the elective system itself can involve delay and uncertainty.

Earlier this week, The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, reported that the race to fill the third and final vacancy on the Superior Court of Pennsylvania, an intermediate appellate court of general jurisdiction, remained too close to call. According to the article, Republican candidate Susan Gantman currently holds slightly more than a 300-vote lead over Democratic candidate John Driscoll. You can access another, perhaps not as up to date, vote tally here, from the Secretary of State of Pennsylvania.

Eighth Circuit rules that ex-Beatle George Harrison was willfully disobedient in failing to appear for two depositions based on assertions of poor health: As a result, the appellate court upheld a bankruptcy court's dismissal of a multi-million dollar claim being pursued by Harrison's estate in the bankruptcy of Harrison's former business manager. You can access today's ruling at this link.

D.C. Circuit holds that woman who agrees to fly F-14 aircraft in combat for the Navy becomes a limited-purpose public figure under the law of defamation: You can access today's interesting ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.

BCRA, the day after: Marty of "SCOTUSblog," who has been providing insightful coverage of the challenge to the constitutionality of the McCain-Feingold campaign finance law for many months now, offers detailed coverage of yesterday's ruling. You can access his earliest post here and then scroll up the page for the rest. Gregg Easterbrook writes today that "Campaign finance reform has just been used by the Supreme Court for a significant erosion of free speech."

"Black to lead UC law school; Harvard professor advised Clinton on affirmative action":The San Francisco Chronicle today reports here that "Christopher Edley, a Harvard Law School professor who crafted former President Bill Clinton's 'mend it, don't end it' policy on affirmative action, has been named as the new dean of the prestigious Boalt Hall School of Law at UC Berkeley, university officials said Wednesday night." The law school has issued a press release stating that "Edley ... will be the first African American dean to lead a top-ranked U.S. law school...." You can access Edley's biography here.

"Bureaucratization of the law such that the lawyers can turn over to nonlawyers the lawyer's knowledge of the law is not acceptable for our profession." A lawyer shouldn't rely on a non-lawyer-assistant's incorrect understanding of the deadline for a timely appeal and later have the failure to appeal in time deemed "excusable neglect," this opinion that a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued yesterday holds.

"Do as I say...."The Fort Worth Star-Telegram today reports, in an article headlined "Jurors convict pageant winner," that "A former Miss Teen Texas whose platform was against underage drinking was convicted Wednesday of public intoxication in Arlington municipal court." In fairness, the article reports that the defendant still proclaims her innocence.

Local and state government institutions provide a wide variety of services ranging from transportation to economic development, which can produce ripples in the broader stream of interstate commerce to varying degrees. The general question presented by the relatively bizarre factual background of this case is whether or not a core function of municipal government -- the provision of firefighting services -- impacts interstate commerce such that an individual can be indicted under a federal anti-arson statute for destroying a fire station. The more precise question, upon which we dwell, is whether the Henning, Tennessee Fire Station was used in an activity affecting interstate commerce such that the person charged with setting it ablaze can be indicted under 18 U.S.C. § 844(i). We hold that this particular fire station was used in an activity affecting interstate commerce and accordingly REVERSE the judgment of the district court dismissing the indictment and REMAND for further proceedings consistent with this opinion.

Judge Sutton's dissenting opinion begins:

"Some say the world will end in fire, Some say in ice." Robert Frost, Fire and Ice, in The Poetry of Robert Frost 220 (Edward Connery Lathem ed., 2002). From what the 970 residents of Henning, Tennessee have seen of John Laton, their fire chief, one could certainly understand why they would "hold with those who favor fire." Id.

Yet the incompatibility of this crime with this alleged criminal merely serves as a prelude to other oddities of this case. Consider what happened after the fire chief set fire to the Henning Fire Station. While arson is a state-law felony in Tennessee, as in all States, neither the local prosecutors nor the Attorney General of Tennessee indicted this defendant. While the federal crime of arson applies just to property "used in" interstate commerce, 18 U.S.C. § 844(i), the National Government indicted this defendant for destroying a building that has a uniquely public, non-commercial and sovereign purpose. And while the United States acknowledged at oral argument that it was not aware of a single other prosecution under § 844(i) for the arson of a local public building, the United States Attorney for the Western District of Tennessee invoked this statute in response to the destruction of a rural fire department by a local fire chief.

This case, however, is not just unusual as a matter of fact, law, or history; it is also unusual as a matter of precedent. Three Terms ago, in a 9-0 decision, the United States Supreme Court held that § 844(i) does not apply to the burning of residential homes. Jones v. United States, 529 U.S. 848 (2000). In doing so, the Court made clear that the provision applies only to the destruction of buildings with an "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855. Fire stations are no more "active[ly]" used for "commercial purposes" than residential homes are. In point of fact, this would seem to be the easier case--as firefighting represents the epitome of an unbargaining public service and the arsonist in this instance represents the epitome of a local public official. To conclude otherwise is to embrace the view that even the most attenuated connections to commerce will suffice in prosecuting individuals under this statute, a perspective that by my reading of Jones is no longer an option for the lower courts. For these reasons and those elaborated below, I would affirm the judgment of the district court dismissing this case.

"Reformers, Cheer While You Can; The high court issues a key ruling on campaign finance, but warning signs are in sight." Election Law Professor Rick Hasen, whose blog you can and should access here, has this op-ed today in The Los Angeles Times. I admire anyone who has read the entire decision at this point. Once I get into work today, I'm planning to print-out the ruling, carry it around with me for a while, and see what if anything happens.

Why I really enjoyed my visit to St. Croix, USVI: Before Sunday, I had the pleasure of vacationing on St. Thomas (where friends of my wife's parents owned a home that they would allow friends to occupy while they, the owners, were off-island) and on St. John (where a former law partner of mine had built a lovely vacation home using, in part, the proceeds of a contingent fee representation on which I worked at the appellate stages). But I had never set foot on St. Croix. (More general information about the U.S. Virgin Islands can be accessed here, from the good folks at the Central Intelligence Agency, and here, from the USVI Department of Tourism.)

St. Croix is the largest of the three major islands, although it feels much less built-up and busy than St. Thomas. When I arrived early on Sunday afternoon, the weather was quite cloudy and overcast and, of course, hot. Apparently the weather wasn't much better on Saturday, which was when I was originally scheduled to have arrived. I had arranged to rent a car, because the hotel where I was staying was quite a distance away from town and the federal courthouse where my oral argument before the U.S. Court of Appeals for the Third Circuit was scheduled to take place on Tuesday. I had driven previously on St. Thomas and St. John and thus was used to driving on the left-hand-side of the road a car whose steering wheel is also on the left. (It brought a smile to my face when I saw a sign on St. Croix's major, two-lane highway stating "Keep left, Pass right.") As on St. Thomas, most of the roads on St. Croix are one lane in each direction and bring to mind a slalom videogame given the abundance of twists, turns, and cutbacks. At night, unfamiliar roads can be most challenging, because streetlights are rare away from town.

I navigated my way to the Carambola Beach Resort without incident only to learn, as I previously noted here, that Internet access was next to impossible. My cell phone, serviced by AT&T, also wasn't able to get reception there. My SkyTel Blackberry, however, worked if I held it up toward the roof of my hotel room. The hotel was just fine and right on the beach. Later I learned that the out-of-town attorneys for the opposing party in my Third Circuit appeal, the United States, were also staying at Carambola.

On Sunday night I decided to venture out for dinner to St. Croix's largest town, Christiansted. I had a very nice dinner at RumRunners, which sits right on the water. The frozen key lime pie dessert is to die for. Having my first drive to and from town occur at night probably wasn't the best thing to do, but I ended up finding my way there and home without major incident.

Monday was another cloudy and overcast day, which was fine because I was engaged in final preparations for my oral argument the next morning. For lunch, I decided to take a large volume of the Appendix on appeal to Cheeseburgers in Paradise, which (as this map confirms) is located quite a distance from where I was staying. I was the only patron of the restaurant who appeared to have an appellate appendix in tow. For dinner, I decided to stay close to where my hotel was located, but the choice of The Waves at Cane Bay proved inspired, as I enjoyed a delicious pasta dish made with local lobster.

On Tuesday morning, I awoke early to the sun shining through the slats of the door to the porch. The USVI is in the Atlantic time zone, meaning that during this time of year it is one hour ahead of the east coast of the USA. I figured it was just my luck that the morning I had to be in court turned out to be sunny, and I feared that as soon as I left the courthouse the sun would return behind the clouds for the remainder of my stay. The federal court building on St. Croix is located, from where I was staying, on the road into Christiansted. When I called the courthouse on Monday morning to confirm directions, I was first told that it was far too complicated to explain, but the courthouse was located across from McDonald's and Subway near a shopping center. Fortunately I had driven right past the McDonald's and Subway on my way to dinner on Sunday night and was able to confirm the precise location of the courthouse on my way to lunch on Monday. The courthouse itself is a very nice structure (see a photo here), and the oral argument was on the second floor in courtroom two. The courthouse also offers free parking for visitors.

The Third Circuit panel hearing cases in St. Croix this week consisted of Circuit Judge Richard L. Nygaard and Senior Circuit Judges Edward R. Becker and Walter K. Stapleton. I had learned on Monday that Judge Becker, perhaps the court's most active questioner, had remained in Philadelphia due to a slight illness and was participating via telephone. My case was second on the list, and the courtroom was as nice inside as the courthouse looked from the outside. Before the oral argument began, I had the pleasure of meeting District Judge Thomas K. Moore, whose order my client was appealing, and his law clerk, both of whom turned out to be readers of this very blog. The oral argument went well, and I am pleased to report that Judge Becker by telephone is no more deterred by the red light indicating that an advocate's time at the lectern has expired than is Judge Becker in person.

I was also quite pleased that the sun remained out for the rest of the day Tuesday, allowing me to visit the beach later in the afternoon. On Tuesday night, I had the pleasure of dining at Kendrick's in Christiansted, which also was wonderful. Because my cell phone works from in town, I was able to check my voice mail and learn that a lawyer from out of state wishes to retain me to work on a new Third Circuit appeal at the recommendation of a well-known Pennsylvania-based appellate lawyer whose law firm had a conflict that prevented its handling of the matter.

My choice of a good restaurant was confirmed later in my visit when the two Third Circuit judges showed up for dinner while I was in the middle of my meal. On my way out of the restaurant -- which is small enough that all guests can see one another -- I stopped at their table to wish them a good dinner and a safe trip home, and to thank them for allowing me finally to visit St. Croix, because I never had the opportunity when I was clerking for a Third Circuit judge. They explained that they themselves had been reminiscing earlier in their visit about a trip that they made some thirteen years ago to St. Croix with the judge for whom I had clerked and that the sitting probably had occurred during my clerkship. Indeed it did.

Yesterday afternoon after 4 p.m. was the scheduled departure time for my flight back to the mainland USA. And it was another sunny day in the USVI, allowing me to spend a bit of time on the beach before heading to the airport. I took to the beach the opposing party's opening brief in the appeal I am due to argue in Philadelphia before a three-judge Third Circuit panel in January 2004. I may have temporarily lost the usual pallid appearance of an appellate lawyer, but I promise it will be returning soon. At the airport, I cleared the immigration checkpoint in under one minute. Yes, the officer would have preferred a passport or a birth certificate, but neither is absolutely necessary. One of the Third Circuit judges was on the plane back to Miami, and one of the lawyers for the U.S. government and his spouse were also on board, sitting just across the aisle from me. I told that lawyer that I had been denied travel on Saturday due to my not having either a passport or birth certificate as proof of citizenship, and the lawyer told me that he has traveled repeatedly to the USVI (including on this very trip) without either a passport or birth certificate and was never denied transportation down and never had an incident passing through the immigration checkpoint on the return trip home.

Last night was warm and rainy in Philadelphia, and flooding and ground fog were feared due to melt-off from this past weekend's snowstorm. My departure from Miami was delayed for an hour, but we managed to arrive in Philadelphia almost on time due to a fortunately-timed break in the weather. Two final things about St. Croix. Gasoline prices were surprisingly low -- $1.32 for regular and $1.42 for premium, perhaps due to the presence of one of North America's largest oil refineries on the island. And the FM radio station at 104.3, known as "The Buzz," is quite good. In short, I'd return in an instant.

"Senate confirms Fisher for judgeship; The Pa. attorney general will join the U.S. Court of Appeals for the Third Circuit, based in Phila." Yesterday The Associated Press issued this report. Once he assumes office, Judge Fisher will be entitled to serve for life on a federal appellate court on which one of the other judges in active service is the spouse of the person who defeated him in his quest to become Governor of Pennsylvania.

Did someone say BCRA? While I was applying my suntan lotion yesterday morning in advance of my pre-flight home visit to the beach -- which was no more than thirty paces from my hotel villa -- CNN reported that the U.S. Supreme Court had announced its much-anticipated campaign finance decision on the legality of the McCain Feingold law.

The ruling -- all opinions plus the Court-issued syllabus -- checks in at nearly 300 pages. There is already discussion about whether the decision is the longest that the Court has ever issued. So long as it isn't the most boring, I won't complain.

Election law blogger Rick Hasen provides extensive coverage. His earliest post on the ruling can be found here. Begin there and then browse through the more recent postings.

Greetings from the suburbs of Philadelphia, Pennsylvania: Just arrived home moments ago and am pleased to report that my trip to St. Croix was fantastic. Thanks to the good folks at American Airlines for transporting me safely both ways -- albeit a day late heading out. I'll have more to say about my trip later, but for now simply allow me to confirm that neither a passport nor a birth certificate is required for a U.S. citizen to regain admission to the mainland USA. If you doubt that, allow me to offer myself as Exhibit A.

Greetings from St. Croix, USVI: The very good news is that I arrived in St. Croix earlier today, and the weather is quite warm here (it was 82 degrees outside when my plane landed). The sad news is that Internet access is next to impossible from my hotel. As a result, this blog in all likelihood won't be updated next until the morning of Thursday, December 11, 2003. See you then.

The long and the short of it: The U.S. Virgin Islands, while part of the United States, are deemed to exist outside of the Nation's customs and immigration borders. Thus, when someone visits the U.S. Virgin Islands from the mainland United States, he or she must clear customs and immigration on return to the mainland.

This morning, I arrived at the airport in Philadelphia at an ungodly early hour, in the midst of today's winter storm, carrying the forms of identification I had been told would suffice to ensure my readmission on return home. The ticketing computer of the major air carrier on which my flights had been booked -- an airline without a hub in Pennsylvania on which I have seldom if ever flown in the past -- stated that only two forms of identification would guarantee readmission, and I had neither with me this morning nor do I have either readily available now. Because I possessed neither form of identification, the airline refused to transport me to my destination.

On my return home, I was outraged to learn, based on my review of the Web site of the U.S. Customs and Border Protection agency and my discussions by telephone with both Customs and Immigration officials on the ground in St. Croix -- the destination to which I am traveling -- that the forms of identification that I had with me this morning would indeed have sufficed to ensure my readmission. Why was I outraged? Here are a few of the reasons: I woke up at 4:15 a.m. this morning to catch my flight and now will have to do so again tomorrow; I traveled treacherous roads to get to and from the airport; either my hotel and car rental agency or I will have to bear the cost of my arrival one day late; the last-minute airfare on the airline I use most often, an airline that I trust would have known that my ID was sufficient, is approximately $1000 more than the cost of my previously purchased tickets on the airline that has no clue; and I'm spending a day I had hoped to spend in the tropics instead in a winter wonderland, seething.

Fortunately, a mere five and one half hours after departing for the airport this morning, I was able to convince the ticketing agent supervisor of the air carrier on which I was to have traveled that I should have been allowed to travel out this morning based on the forms of identification I then possessed. How did I make my case? I had her speak with the immigration officer in St. Croix who had told me that he had never heard of an airline's refusing transportation to someone who had my documentation and that I would have no trouble gaining readmission based on it. Still, though, what an annoying, anxiety-ridden morning I had the pleasure to experience today, all because one of America's major air carriers has no clue about what the rules governing travel between the mainland USA and the U.S. Virgin Islands provide. I can't wait until I return home from my trip to the Islands to write an angry letter to the airline's CEO. And I will no longer fail to heed my wife's reminders that I really ought to do what's necessary to apply for a passport, even though one clearly isn't necessary under the current rules governing transportation between where I am and where I'm going.

"Personal motive suspected in killing of U.S. prosecutor; Investigators pursue theory of relationship that turned violent; Case could be handed off to Pa."This article appears today in The Baltimore Sun.

Can't complain: It would be extraordinarily bad form -- in the midst of a snowstorm that is expected to dump between six inches and a foot of snow in the suburbs of Philadelphia where I reside -- to express anything other than absolute delight at having to travel to an exotic, warm, and sunny tropical location to deliver an appellate oral argument to a panel of three judges of the U.S. Court of Appeals for the Third Circuit. Never mind that my typical journey to appear before these judges consists of a ten minute walk instead of five hours on an airplane. I'm due to be en route most of the day tomorrow, and I won't know for sure until I arrive at my destination whether a super-fast Internet connection awaits me, and the laptop computer I'm lugging along, in my hotel room. To the extent that blogging is curtailed or non-existent over the next several days, rest assured that I will have found something even more worthwhile to occupy my time and that I will do my best to catch-up on any backlog of appellate-related developments once I return to my usual haunts sometime later next week.

Update: Sadly, my arrival in the Caribbean has been postponed until Sunday.

"HLS 1L's case arrives at Supreme Court; Justices consider Davey's challenge to Washington state law denying public scholarships to theology majors." Clinton Dick has this report in the current issue of The Harvard Law Record.

"High court rejects Moore's plea; Disgraced former governor won't get law license back":The Charleston Gazette today contains this article, which reports (among other things) that someone apparently leaked an early draft of the Supreme Court of Appeals of West Virginia's opinion to the press, that yesterday the court had posted online only a concurring opinion, which was quickly withdrawn from the Web, and that the majority opinion never was posted online. A reader yesterday had emailed a similar report about the curious appearance and disappearance of the concurrence from the Web, and now official confirmation appears to have occurred. The clerk of that court has his own Web log, but only time will tell whether yesterday's events will receive mention there.

Cue the tape:This decision that a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today involves an interesting question about when a government witness may be allowed into the jury room while deliberations in a federal criminal prosecution are underway and neither the defendant nor his counsel are present.

"Kamehameha settlement OK'd":The Honolulu Advertiser today reports here that "A federal judge's decision yesterday to approve a settlement allowing a non-Hawaiian to continue his education at Kamehameha Schools stoked the fires of the controversial case, with the debate this time centering on the issue of the Hawaiian adoption tradition known as hanai."

"County employee dupes bosses with 'jury-duty' leave, police say; A man is arrested, accused of collecting $17,388.47 in pay for six months while falsely claiming to be on jury duty."This article appears in today's edition of The Miami Herald. (Via "Obscure Store.")

Over the dissent of six judges, U.S. Court of Appeals for the Ninth Circuit denies rehearing en banc in controversial police chase qualified immunity case: You can access today's order denying rehearing en banc, the dissent therefrom, and the amended three-judge panel opinion and amended dissent therefrom at this link. You can access here the three-judge panel's original opinion, issued on August 4, 2003, and my post from that day, entitled "Ninth Circuit considers future of 'World's Scariest Police Chases,'" is available here.

Appellate heresy? The December 2003 installment of my monthly appellate column (archived here) will be published on Monday in The Legal Intelligencer. In this month's column, I argue that with respect to those appellate courts that allow oral argument in fewer than all appeals to be decided on the merits, the decision concerning which appeals should be argued ought to be made by the appellate judges rather than by the lawyers for the parties.

The specific focus of my argument is the Superior Court of Pennsylvania -- an intermediate appellate court of general jurisdiction -- where it is not unusual for a three-judge panel to have oral argument in twenty to thirty cases per day in a three-day sitting. But, of course, my argument probably applies to all very busy appellate courts in which the lawyers, rather than the judges, are determining which appeals are argued.

On the other hand, as this post yesterday from new mom Denise Howell explains, in appeals pending in the California state court system, parties have a right based on that state's Constitution to oral argument in every appeal. Yikes.

I'd be interested to hear from the readers of this blog -- especially appellate practitioners and appellate judges -- whether they agree that a system in which appellate judges determine which appeals are orally argued is superior to a system in which the lawyers decide. To initiate an email to me, simply click here.

This morning's other Ten Commandments news:The Ledger Independent of Maysville, Kentucky reports this morning that "The 6th Circuit U.S. Court of Appeals in Cincinnati will hear open arguments today on the appeal of U.S. District Court's decision calling for the removal of Ten Commandments monuments from four school campuses in Adams County." The Northeast Georgian reports here today that "The Habersham County Commission will appeal a judge’s ruling which ordered the county to remove its copies of the Ten Commandments from public display." And in other news from Georgia, The Tifton Gazette reports that "Ten Commandments signs pop up around Tifton."

"Moore to appeal his ouster":The Montgomery Advertiser today contains an article that begins, "Refusing to accept his removal from office, ousted Alabama Supreme Court Chief Justice Roy Moore announced Thursday that he will file an appeal on or before Dec. 10, continuing his legal fight to get his job back."

"Prosecutor of drug case found killed; Assistant U.S. attorney for Md. discovered shot, beaten and stabbed in Pa.; 'We will find out who did this'; Authorities retrace Luna's steps, ask for public's help":This article appears today in The Baltimore Sun.

Access online the federal government's brief in opposition filed in the U.S. Supreme Court in response to the petition for writ of certiorari filed by accused enemy combatant, and U.S. citizen, Yaser Esam Hamdi: You can access the brief in opposition, filed with the Court on Wednesday, at this link.

"Federal judge John Hannah dies at age 64":The Associated Press reports here that "Federal Judge John H. Hannah Jr., chief judge for the U.S. Eastern District of Texas, died Thursday of an apparent heart attack while attending a judicial conference in Florida. He was 64."

This suit was brought in the United States Court of Federal Claims by Cuban nationals seeking payment of pension benefits from the United States government. The complaint alleges that the plaintiffs are former military personnel, or the surviving spouses of former military personnel, who served in various branches of the United States armed forces during World War II, and therefore, are entitled to participate in the Civil Service Retirement System. The Court of Federal Claims dismissed the plaintiffs' action for want of jurisdiction, holding that it did not have subject matter jurisdiction over their complaint pursuant to 28 U.S.C. § 2502(a) (the "Reciprocity Act") even if they were entitled to payment. Ferreiro v. United States, 54 Fed. Cl. 274, 281 (2002). The Reciprocity Act limits the jurisdiction of the Court of Federal Claims over suits brought by aliens against the United States to those suits in which the alien's home country "accords to citizens of the United States the right to prosecute claims against their government in its courts." 28 U.S.C. § 2502(a) (2000). For the reasons set forth below, we vacate the judgment of the Court of Federal Claims dismissing the complaint and remand the case for a more complete assessment of whether the plaintiffs have satisfied the requirements of the Reciprocity Act.

"Authorities Search for Missing Prosecutor":The Associated Press reports here from Baltimore that "Authorities searched for a federal prosecutor who failed to show up at court Thursday for the drug trial of a rap artist and one of his former associates, an FBI spokesman said."

Update: CNN just reported at 3:29 p.m. that this prosecutor's body has been found dead, shot and stabbed, in Lancaster, Pennsylvania

First Circuit granted rehearing en banc yesterday in an important Voting Rights Act case: Law Professor Rick Hasen, of the "Election Law" blog, has the details here. My post reporting on the three-judge panel's now-vacated opinion can be accessed here.

"'Terrorist to abortionists' guilty; The Army of God extremist was convicted by a federal jury of mailing hundreds of bogus anthrax threat letters to disrupt clinics in 24 states."This article appears today in The Philadelphia Inquirer.

"Sanford pleads case directly with Supreme Court justices": In a very interesting article, The Associated Press reports from South Carolina that "Gov. Mark Sanford asked the state Supreme Court on Wednesday to think about the personal side of a constitutional dispute that could undo all of his official actions since taking office in January. It was the first time, as far as court observers could recall, that a sitting governor spoke to the high court."

Marty Lederman of "SCOTUSblog" presents his views on yesterday's U.S. Supreme Court oral argument in the divinity student state-funded scholarship case: You can access his lengthy and informative post here.

In 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Two provisions of AEDPA, section 302 and section 303, codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, authorize the Secretary of State ("Secretary") to designate an organization as a "foreign terrorist organization," and make it a crime with a maximum penalty of life in prison for a person to provide "material support or resources" [hereinafter "material support"] to a designated organization, respectively. This case addresses the question whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization's unlawful activities leading to its designation.

The U.S. Supreme Court's June decision striking down a Texas sodomy law prompts the Kansas state Court of Appeals to reconsider a teenager's conviction and 17-year sentence on sodomy charges. At issue is a state law that imposes lesser penalties on teens who engage in consensual sex but specifically excludes homosexuals. Hear NPR's Greg Allen.

You can access the audio report on yesterday's appellate oral argument in Kansas at this link (Real Player required).

"Funding Studies to Suit Need; In the 1990s, Exxon began paying for research into juries and the damages they award. The findings have served the firm well in court."This front page article appears today in The Los Angeles Times.

"Sjodin case spurs Pawlenty to push for death penalty": This morning's edition of The Minneapolis Star-Tribune reports here that "In a surprising move that would reverse a nearly century-old ban on capital punishment in Minnesota, Gov. Tim Pawlenty vowed Tuesday to push for restoring the death penalty after learning that the suspect in the Dru Sjodin abduction is a repeat sex offender."

"Rock of Ages and a Hard Space: The Supreme Court searches for breathing room in its religion cases." Dahlia Lithwick has this report just posted online at Slate concerning today's U.S. Supreme Court oral argument.

"DoD Announces Detainee Allowed Access to Lawyer":The Department of Defense today issued a press release that begins, "The Department of Defense announced today that Yaser Esam Hamdi, an enemy combatant detained at the Charleston Consolidated Naval Brig in Charleston, S.C., will be allowed access to a lawyer subject to appropriate security restrictions. Arrangements for that access will be developed over the next few days." And The Associated Press has an article headlined "Pentagon: Terror Suspect Can Have Lawyer."

"A family's privacy vs. public's right to know; High Court weighs whether photos of Vincent Foster must be released under the Freedom of Information Act." Warren Richey will have this article in Wednesday's issue of The Christian Science Monitor.

Chief Judge Tacha will be the first currently-serving chief judge of a federal appellate court to participate in the "20 questions" feature, and thus some of my questions will focus on the duties unique to the position of chief judge. Also, Chief Judge Tacha will be the first judge from the Tenth Circuit to answer "20 questions," so I look forward to asking her why her court isn't enthusiastic about becoming home to Arizona in a Ninth Circuit split, and why political partisans haven't viewed the Tenth Circuit as worthy of having its nominees filibustered. Maybe I will even ask why the Tenth Circuit doesn't post online its decisions each day until 6:20 p.m. mountain time, which is 8:20 p.m. where I live.

As of this moment, of all the federal courts of appeals, I probably know the least about the Tenth Circuit. Thus, I would welcome any and all suggested questions that readers of "How Appealing" wish to offer. You can initiate an email to me by clicking here.

Today's U.S. Supreme Court opinions:The Supreme Court of the United States issued two opinions today. Justice Clarence Thomas issued the unanimous opinion (with two recusals) of the Court in Raytheon Co. v. Hernandez, No. 02-749 (syllabus here; opinion here; oral argument transcript here), in which the judgment under review was vacated and remanded. And Justice David H. Souter issued the unanimous opinion of the Court in United States v. Banks, No. 02-473 (syllabus here; opinion here; oral argument transcript here), in which the judgment under review was reversed.

"Lawyer for Christian Causes Brings Outsider's Perspective": In Tuesday's edition of The Los Angeles Times, David G. Savage will have this profile of Jay Alan Sekulow. The article begins, "The nation's leading lawyer for evangelical Christians was born and raised a Jew in Brooklyn, but decided in college that Christ was the Messiah."

"A case of faith and college aid: The high court Tuesday considers whether a religion student can be denied state funds." Warren Richey will have this article in tomorrow's issue of The Christian Science Monitor.

I'm writing to say thank you for publishing the Posner interview and to call your attention to the newest description of your blog on another blog (Volokh Conspiracy @ 5:10 pm today).

The Posner interview lived up to the hype and was probably the best one yet. I particularly like how you were able to ask, in true exam format, 40 questions of Judge Posner. As a 2L student looking forward to clerking after law school, I often wonder what federal judges are like, personally and professionally, and I think that your 20 questions feature is the best source of information on this front, so thank you and keep up the good work.

Well, thank you for those kind words. And thanks to Eugene Volokh for his kind thoughts, expressed here.

Fourth Circuit holds that student who wishes to wear NRA t-shirt in Virginia middle school was entitled to preliminary injunction against prohibition in school's dress code policy: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link. Law Professor Eugene Volokh had a post about this case back in September 2002, and he also provides photos of the t-shirt in question. Other coverage of this case is available here, here, and here.

1. Whether a plaintiff who wishes to bring a Sec. 1983 suit challenging only the conditions, rather than the fact or duration, of his confinement, must satisfy the favorable termination requirement of Heck v. Humphrey. 2. Whether a prison inmate who has been, but is no longer, in administrative segregation may bring a Sec. 1983 suit challenging the conditions of his confinement (i.e. his prior placement in administrative segregation) without first satisfying the favorable termination requirement of Heck v. Humphrey.

In September 2001, I filed my Brief for Appellant in the Third Circuit appeal presenting essentially the same questions. I had hoped that perhaps the appeal I was appointed to handle would bring the circuit split before the U.S. Supreme Court for resolution. But, the Commonwealth of Pennsylvania's brief on appeal conceded that Heck did not provide a basis for dismissing my client's suit, and thereafter the Third Circuit agreed, reversing the order that had dismissed my client's civil rights claims. Although my Brief for Appellant is now more than two years old, I think that it provides a useful overview of the arguments in favor of reversal in the case in which the Supreme Court heard argument today. Also available online are the Brief for Petitioner and the Brief for Respondent in the case argued today.

"Once again litigants' insouciance toward the requirements of federal jurisdiction has caused a waste of time and money." So begins an opinion on behalf of a unanimous three-judge panel that Seventh Circuit Judge Frank H. Easterbrook issued today. The appeal in question followed a jury trial in federal district court. The second to last paragraph of the opinion states:

One more subject before we conclude. The costs of a doomed foray into federal court should fall on the lawyers who failed to do their homework, not on the hapless clients. Although we lack jurisdiction to resolve the merits, we have ample authority to govern the practice of counsel in the litigation. See, e.g., Willy v. Coastal Corp., 503 U.S. 131 (1992); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393-98 (1990); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1987). The best way for counsel to make the litigants whole is to perform, without additional fees, any further services that are necessary to bring this suit to a conclusion in state court, or via settlement. That way the clients will pay just once for the litigation. This is intended not as a sanction, but simply to ensure that clients need not pay for lawyers' time that has been wasted for reasons beyond the clients' control.

The complete opinion -- which recommends that lawyers "use the Internet." -- can be accessed at this link.

Attorney for the federal government who admits at Eighth Circuit oral argument that he doesn't read "How Appealing" loses that case on appeal: Today the U.S. Court of Appeals for the Eighth Circuit issued its opinion in Advanta USA v. Chao. You can access my report from September 2003 on the oral argument in that case -- in which one of the Eighth Circuit's judges asked the lawyer for the federal government whether that lawyer reads "How Appealing" -- at this link.

Today's U.S. Supreme Court Order List: Today's Order List can be accessed at this link. The Court granted review in six new cases and entered an order that will allow Michael Newdow to argue pro se his case challenging the Pledge of Allegiance. The Court also declined to review the Ninth Circuit's decision in Silveira v. Lockyer, a case presenting the question whether the Second Amendment confers an individual right to bear arms.

"The Power of Unpredictability: Justice Sandra Day O'Connor's numerous 'swing-vote' decisions have kept U.S. Supreme Court watchers guessing." Dahlia Lithwick today has this op-ed in The Los Angeles Times.

According to a biography accessible online here, Judge Posner was born in New York City in January 11, 1939. He attended undergraduate school at Yale, where he was elected to Phi Beta Kappa his junior year and graduated summa cum laude. He then attended law school at Harvard, where he served as president of the Harvard Law Review and graduated first in his class. After law school, he clerked for Associate Justice William J. Brennan, Jr. of the Supreme Court of the United States. Thereafter, Posner served from 1963-1965 as assistant to Commissioner Philip Elman of the Federal Trade Commission, from 1965-1967 as assistant to Solicitor General Thurgood Marshall, and from 1967-1968 as general counsel to President Lyndon B. Johnson's Task Force on Communications Policy.

From 1968-1969, Posner taught as an associate professor at Stanford Law School. In 1969, he became a professor of law at the University of Chicago, a job he held until 1981 when he was confirmed to the bench. Since 1981, Judge Posner has continued to teach at the University of Chicago Law School part-time as a senior lecturer, and this Web page provides many more details about his academic and professional accomplishments.

On October 27, 1981, President Ronald W. Reagan nominated Posner to fill a vacancy on the U.S. Court of Appeals for the Seventh Circuit. In less than one month's time, the U.S. Senate confirmed him for the post. From 1993 through 2000, he served as the Seventh Circuit's Chief Judge.

Judge Posner has his chambers in Chicago, which is where the Seventh Circuit has its headquarters.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

Most favorite aspects: the variety of cases, which has greatly broadened my knowledge of law, government, and human nature, and given me the opportunity to write judicial opinions, a rhetorical exercise that I greatly enjoy along with the give and take of oral argument. Least favorite aspects of the job: some of the cases are dull, and the average quality of briefs is pretty low.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Oliver Wendell Holmes (who was both), probably the only genius in the history of American law, whom I greatly admire for his candor, eloquence, wit, toughmindedness, and judicial creativity. Think only of his labor opinions for the Massachusetts Supreme Judicial Court, his Supreme Court dissents in Abrams and Lochner, and in other free speech and substantive due process cases, and a number of great tort cases.

3. How did you come to President Reagan’s attention as a potential Seventh Circuit nominee, when did you first realize that you might be interested in becoming a federal appellate judge, and what concerns if any did you have in 1981 about giving up some or all of your other work to become a judge?

I believe that William F. Baxter, the head of the antitrust division and a former colleague of mine at Stanford, suggested my name. I hadn't previously had any thought of becoming a judge. My principal concern in accepting the judgeship was the financial sacrifice, because I had a large income from consulting.

4. The confirmation process that nominees for U.S. Court of Appeals vacancies must undergo is quite a bit more politicized today than when you experienced it in 1981. Does the current tenor of the confirmation process cause you any concern? Had your nomination come before today's U.S. Senate, do you fear that it would have been filibustered? What if anything realistically can be done to improve the nomination and confirmation process, or do you believe the process is working as it should given the significant role that you say an appellate judge's ideology plays in reaching decisions?

I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.) I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the "hot button" decisions that engage the attention of politicians; and Senators are politicians. What is objectionable about the current process is the length of time it takes. I don't see why it couldn't be compressed. Between the time that I agreed to accept appointment as a judge, which was near the end of June 1981, to the time I was confirmed by the Senate, which I think was sometime in November, about five months elapsed, and I don't see why the process should take any longer than that.

5. You have for many years described your judicial philosophy as one of "judicial pragmatism." For those readers of this interview who have not previously encountered your description of what that means, would you please explain the term and how your approach to judging works in practice.

There isn't space enough for me to answer this question fully, and instead let me refer readers to my book Law, Pragmatism, and Democracy (Harvard University Press, 2003), and to an earlier book, Overcoming Law (Harvard University Press, 1995). The essence of judicial pragmatism, or at least my version of it, is recognition that difficult cases--and they are legion in our system--cannot be resolved at the appellate level by a distinctive process of reasoning called "legal reasoning," emphasizing careful parsing of text and scrupulous adherence to precedent and an analytical method that resembles deductive logic. Those methods do not resolve difficult legal cases, but merely conceal the true springs of decision in such a case, which involve a careful examination of the practical consequences of a decision for or against the appellant. The pragmatist emphasizes the continuity of facts and law, and the importance of common sense, experience, values, and yes, ideology in resolving cases when the conventional materials of judicial decision making--authoritative texts, precedent, deduction, and so forth--run out, as they so frequently do. This is not to deny the virtues, which are thoroughly pragmatic, of logic, fidelity to text, and adherence to precedent, techniques that can resolve most cases--only not the most challenging ones. The pretense that they can is particularly threadbare in the Supreme Court, which decides a very high percentage of cases that are in fact indeterminate from the standpoint of orthodox legal analytics. In any split decision by the Supreme Court, to say that one side is "right" and the other "wrong" is usually a naïve reaction.

6. A 1998 study of federal appellate judicial opinions issued between 1982 and 1995 found that your opinions were, by an "unusual" statistical margin, cited by judges in other circuits more often than opinions written by any other judge. The study argued that citation by judges in other circuits is the best indicator of judicial influence, making you the most influential federal appellate judge in the country. Given that you are yourself a student of citation studies -- having prepared them to analyze the influence of opinions by Cardozo and Hand, and having critiqued citation studies elsewhere -- to what do you attribute your top ranking? To your practice of writing opinions yourself, to your issuing more opinions than other judges, to your wide-ranging extracurricular writings and speeches, or to something else entirely?

I don't see how I can answer this question without seeming to brag. You really ought to ask the judges who cite me why they do so. Obviously one factor in my being cited a lot is that I write more opinions than other federal appellate judges, and it may help as well that I do write my own opinions and that I try to be clear and frank and practical, and if I am right that pragmatism is the secret story of our courts these are qualities in a judicial opinion that should appeal to other judges.

7. Would Justice Posner of the U.S. Supreme Court have been as distinguished a jurist as Judge Posner of the U.S. Court of Appeals for the Seventh Circuit, keeping in mind, to pick one example, how Justice Cardozo's output on the U.S. Supreme Court differed from Judge Cardozo's output on the New York Court of Appeals?

Cardozo didn't have a chance to show his stuff on the Supreme Court. He served for only six years, and actually did quite well--his opinions are heavily cited, as I pointed out in my book Cardozo: A Study in Reputation (University of Chicago Press, 1990). Because he served three times as long on the New York Court of Appeals, it is inevitable that his work on that court should have overshadowed his work on the Supreme Court. I have no idea how I'd do as a Supreme Court Justice. I think the Court is short in political experience, and I would add nothing from that angle. I also note that judges who do well on lower courts sometimes disappoint as Supreme Court Justices.

8. How have you benefited in your work as an appellate judge from serving on occasion by designation as a trial court judge? Might not trial court judges likewise gain worthwhile insights by serving by designation as appellate court judges? Why has the Seventh Circuit not recently allowed its trial court judges to have that experience?

I think I've learned a lot from my ventures into the trial court, particularly about the limitations of the adversarial model of factfinding, about the psychological pressures of trials on district judges, and about the differences between the facts as they are developed in a trial and the facts as they appear in the briefs and record of a case when it reaches the court of appeals. The academic work that I've done on the law of evidence, and, more recently, academic work that I've done with the economist William Landes on patent law, and still more recent academic work that I am doing on the law's response to the complexities of modern science, stem directly from my experiences presiding at trials.

I have no objection in principle to designating district judges to sit on the court of appeals. The practical objection to any visiting judges, trial or appellate, is that by increasing the de facto size of the court the use of visiting judges makes it more difficult to maintain a reasonable uniformity of approach and decisions--to anticipate the next question.

9. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best? Also, in your June 2000 article titled "Is the Ninth Circuit too Large: A Statistical Study of Judicial Quality" published in the Journal of Legal Studies, you concluded that the Ninth Circuit's size was not the direct cause of that circuit's uniquely high rate of summary reversals by the U.S. Supreme Court. What else may explain the Ninth Circuit's summary reversal rate on which your article focused?

I think it should be split, not so much because the size per se of an appellate court is inimical to quality, although I think it is, though I cannot prove it, as you note; the larger the court, the more difficult to maintain coherence and collegiality. The particular virtue of splitting would be that it would remedy the worst feature of the Ninth Circuit, namely its bobtailed en banc procedure, whereby the chief judge plus 10 judges chosen at random constitute the en banc panel, leaving 17 judges out, who may include all the judges of the original panel! It is an absurd system, which encourages fission because the three-judge panel that decides the case initially knows that, with luck, the en banc panel will not overturn the three-judge panel's decision even if the decision is contrary to the views of the court's majority as a whole. In the opposite case, in which an unrepresentative en banc panel overturns a representative three-judge panel, the judges of the court as a whole are unlikely to take the en banc decision entirely seriously in later cases. So you have a formula for infighting and doctrinal incoherence; and remember that the pragmatist does not deny the value of adherence to precedent in most cases. The article of mine that you mentioned made I think a compelling case that the Ninth Circuit is performing badly, a case reinforced by the impressions that almost everyone has who appears before the Ninth Circuit or reads its opinions.

10. Your opinions tend to be a pleasure to read, which is something that I cannot honestly say of the opinions written by the vast majority of your colleagues on the U.S. Courts of Appeals. Why, in your view, do not more of your colleagues endeavor to write opinions that are interesting and accessible? And now that you have written somewhere in the ballpark of 2,000 opinions, please list between one and five of them that are your all-time favorites.

I'm glad you like my opinions, but of course other judges also write opinions that are interesting and accessible. (Not that you said I did; but I wish to be clear on the point.) In general I think you'd find that the most interesting and accessible opinions are those that are judge-written rather than clerk-written, or if the clerk wrote a first draft the judge rewrote it thoroughly. The reason is not that the judges are smarter than the law clerks, though obviously they are more experienced, but that law clerks write as it were defensively, conscious of their inexperience and reluctant to produce something that looks like an individual product. Clerk-written opinions tend to a dreary uniformity and often fail to disclose the considerations that actually moved the court to its decision.

I can't pick out my five favorite opinions; that would require me to have all 2000-odd in my head, or to reread them all, which would be impossible. It's almost as if you were asking me to choose among my children. But I'll name a few that I think of fondly, most of which involve art (in however debased a sense) and intellectual property: Mucha, Piarowski, Gracen, Douglass, Nelson, and my absurdly frequent beanie-baby opinions. I would also count among my favorites several of my tort and contract opinions, my dissent in the partial birth abortion case (Hope Clinic), some of my class-action opinions, like Rhone-Poulenc, my recent IP opinions in Apotex (a district court opinion) and Aimster, my privacy opinion in Haynes, and my recent antitrust opinion in the High Fructose case--but I could extend the list quite a bit, to include a number of tax, ERISA, religion, and Indian cases, without going back and reading all 2000+.

11. You were criticized in some quarters for writing and speaking publicly about the Clinton-Lewinsky matter before it was known whether criminal charges against President Clinton would be pursued. Were your critics correct that your comments were in violation of the constraints that apply to federal judges? Are the existing rules clear enough concerning what matters of public interest sitting federal judges may comment on? And finally, if you could scrap the current system and replace it with a set of rules that made the most sense to you, what rules would you choose?

I think the current rules are fine. A judge is not permitted to comment publicly (except in a classroom) on a pending or impending case. I interpret "impending" narrowly, to mean a case that is about to be filed. Interpreted broadly, to mean a case that may someday be filed, it would gag judges, because almost no public issue is not a candidate for an eventual lawsuit. By the time my book on the Clinton-Lewinsky scandal and its aftermath was published, the impeachment trial had ended, in Clinton's acquittal. And while it was theoretically possible that he would be indicted, the probability was remote, and of course he was not, in the event, indicted. I took pains in the book to make clear that in the unlikely event of further proceedings of some sort, the decision would be based on the record compiled in those proceedings rather than on the record available to me when I wrote my book.

12. What advice do you have for lawyers who practice before your court about how they could improve the quality of their written briefs and their oral arguments? Also, a Westlaw search indicates that you may have argued several U.S. Supreme Court cases long before you became a judge. Which argument of yours would you rank as your best performance at the lectern, and how good of an appellate oral advocate were you?

My advice for lawyers practicing before me and my colleagues is threefold: always explain the purpose of a rule that you want us to apply in your favor, because the purpose of a rule delimits its scope and guides its application; always give us practical reasons for the result you are seeking; and don't overestimate the knowledge that an appellate judge brings to your case, because we have very little time to prepare for argument in depth, and the breadth of jurisdiction of the federal courts is such that we cannot possibly be experts in all or most of the fields out of which appeals arise.

I argued six cases when I was in the Solicitor General's office (1965–1967) (and one later). Two of the antitrust cases, Von's and Schwinn, that I argued when I was in the Solicitor General's office were the highlights of my brief career as an appellate advocate. I won't try to assess my performance in that role. My batting average was .600.

13. In the February 2003 installment of my monthly appellate column, I evaluated the quality and usefulness of federal appellate court Web sites. I ranked the Seventh Circuit's Web site as one of the two best, because of the easy access the site provides not only to published opinions but also to briefs, oral argument audiotapes, and free docket entry information. What role, if any, did you play in making the Seventh Circuit's Web site such a useful resource? Who else was involved in the effort? And please explain how and why the Seventh Circuit continued to offer online docket entry access free of charge, even after every other federal appellate court decided to follow the Judicial Conference's edict to charge a per-page access fee.

I can't take any credit for the Web site. The credit belongs to Gino Agnello, formerly the head of the Seventh Circuit's IT staff and now the court's Clerk, but still very active in technical matter, and the members of the IT staff, now headed by Mark Knoll. I don't remember why we decided not to charge an access fee, although I supported the decision when I was chief judge.

14. I must have read too many Judge Posner opinions before starting my judicial clerkship for a judge serving on the U.S. Court of Appeals for the Third Circuit, because early on I added into a draft opinion a passage that would have ordered an attorney to show cause for violating an important rule. I recall my judge's response was that we don't treat attorneys that way in the Third Circuit. Yet even as a practitioner I remain envious of the Seventh Circuit, where the rules are enforced almost mercilessly and amicus briefs are disdained greatly. Please say a few words to your colleagues on other circuits about why attorneys should be publicly called to task for violating court rules and why it makes sense to strictly referee motions for leave to file amicus briefs instead of letting all such briefs be filed and simply ignoring the unhelpful ones?

I think it's enormously important to maintain discipline in a court's bar. The rules have a purpose, most of them anyway, and if the judges allow the lawyers to flout them, the lawyers will flout them, gumming up the works. And lawyers who know they can get away with violating the court's rules develop a contemptuous attitude toward the court, reflected in their briefs and oral arguments, and contributing to docket congestion. Federal judges who do not enforce rules treat lawyers as if they were the judges' constituents, which they are not, because we are not elected officials.

Amicus curiae briefs are for the most part a complete waste of time and a complete waste of the amici's money. If an amicus curiae has some distinctive information or perspective to contribute to the consideration of the appeal, fine, but 99 out of 100 times the amicus curiae briefs filed with our court rehash the arguments in the brief of the party whom the amicus is supporting. My views on amicus curiae briefs are set forth at greater length in a recent opinion, Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542 (7th Cir. 2003) (in chambers).

15. Time for a law and economics question. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

I think the salary is too low, not because I consider myself underpaid, but because the current salary makes it difficult to hire successful lawyers from elite law firms, especially in cities in which the cost of living is very high, such as New York; and as a result the diversity of the federal judiciary is reduced along with the judiciary's sophistication in commercial cases. Not that there aren't plenty of qualified candidates even at the present salary level, which is about that of a second-year associate at a New York firm; I am concerned specifically about the judiciary's lacking the particular kinds of knowledge, experience, and perspective that the elite practitioners at such firms could bring to the court. But in any event there ought certainly be a cost of living differential to reflect the very large difference in the cost of living between large cities and semi-rural areas. That would alleviate the problem to a certain extent.

16. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non-precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I don't like the idea of allowing unpublished opinions to be cited, which is another way of saying that I think courts should be permitted to designate some of their decisions as nonprecedential and therefore not worth citing. (Apparently under the new rule, we won't be allowed to forbid citation of unpublished opinions, but will be allowed to deny precedential force to them, a combination that seems to me to make no sense.) Caseload pressures are such that judges cannot give adequate scrutiny to every decision. I predict that if courts were forbidden to designate certain decisions as nonprecedential, they would cease issuing reasoned opinions in such cases but instead would just say "Affirmed," which is already the practice in the busier circuits. Our court has always given reasons for its decisions, but if those reasons can come back to haunt us, even though they were actually reasons furnished by staff rather than by judges, we might stop doing so.

17. The Economist magazine recently reviewed your latest book, "Law, Pragmatism, and Democracy." The review, accessible here, describes you as "loony," states that your effort to explain your views suffers from their "incoherence," and then concludes with the following: "More troubling still is Mr Posner's view that judges should impose their own policy choices on a case whenever ambiguity in the law gives them the discretion to do so. Many judges do this, though nearly all deny it, justifying their decisions instead by reference to laws and court precedents. Mr Posner thinks this is usually legal flim-flammery, and that frank judicial activism would be better. Few people, on the right or the left, would swallow this. Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge." Your response?

The (anonymous) author of the review doesn't know anything about the American judiciary (the Economist is an English magazine), and I would be surprised if he or she had ever read my opinions, or for that matter Law, Pragmatism, and Democracy. It is an academic book that the reviewer was incompetent to evaluate, and the use of the word "loony" reveals the reviewer's level of taste and sophistication. If you want to read a fair-minded review of the book, read the review in the New York Times Book Review (I think in September) by the distinguished English (!) philosopher Alan Ryan. [Editor's note: Alan Ryan's review can be found at this link.]

18. In December 2001, The New Yorker magazine published a profile of you. Were you pleased with how that turned out, and did the profile contain anything about you that you found to be incorrect or misleading? Also, my audience would be disappointed if I did not ask you to mention your celebrity cat.

I never miss an opportunity to mention Dinah, who is not only a celebrity, but is pedigreed, a beauty, and a serial mouser (52 mice to her credit), and in all these respects very much the superior of her nominal master. The New Yorker profile, which is by a fine journalist, Larissa MacFarquhar, was witty, perceptive, and on the whole accurate, though there are a few points that I would take issue with (including the reference--inevitable, I suppose, in any article about me in the popular media--to baby selling.) It is critical, and makes me out to be rather an eccentric, but criticism is bracing and praise dangerously relaxing, and since the Economist thinks I'm loony, I am happy to be thought merely eccentric. MacFarquhar also exaggerated my role in the law and economics movement, but that's fine!

19. In January 2004, you will turn 65 years old, thereby qualifying to elect senior status if you wish. What are your thoughts about when you would consider cutting back on your workload at the court, providing you with more time to pursue other interests? Also, in March 2003, The Harvard Crimson mentioned you as among the candidates under consideration to become the next Dean of Harvard Law School. As you know, that job has since gone to someone whom the U.S. Senate did not get around to confirming as a federal appellate judge. Had you been offered the job of Dean of Harvard Law, would you have accepted?

I have no interest in taking senior status. At some point I will run out of steam, but not I think on my sixty-fifth birthday.

I would not enjoy being an academic administrator.

20. If you could add a few more hours to each day, how would you spend them?